Plan to apply Israeli law in West Bank: Equal rights or ‘creeping annexation’?

T. Belman. This is an excellent discussion of Shaked’s initiative to apply Israeli law to the settlements.

Program’s initiator, in first statement since leaving army, says he never had politics in mind, was interested in making ‘more effective’ legal system

BY DOV LIEBER, TOI

When Israel’s Justice Minister Ayelet Shaked announced plans in early May to revive an initiative that would extend Israeli civil law to settlements in the West Bank, she set off a predictable firestorm. The arguments of the unlikely man who first proposed the idea, however, were absent from the debate.

Under current Israeli law, the West Bank (excluding areas within the municipal boundaries of Jerusalem) is not part of Israeli territory to which Israeli civil law applies.

The military governor of the West Bank, who also heads the IDF Central Command, is empowered to issue military directives related to civilian life in the area — including labor protection, regulation of commerce and the like.

The “Civil Law” bill backed by Shaked would force lawmakers to consider Israelis in the West Bank when writing up legislation. The new law would then be adapted in accordance with realities in the West Bank, and then signed into law by the military governor.

Shaked said she backs the bill — first introduced in 2014 but rejected by the previous attorney general — in order to bring about “a genuinely equal legislative process.”

To illustrate the pressing need for the bill, she pointed out that maternity leave in settlements is unregulated while pregnant women in Israel proper are protected by the law.

Those who oppose the bill see it as a backdoor method by Shaked and her Jewish Home party to achieve their stated and most sought-after goal — the annexation of Area C of the West Bank, where nearly all 400,000 Jewish settlers live. The UN estimates around 300,000 Palestinians live in Area C, though this number is highly contested. The Jewish Home party puts the number as low as 48,000, while one Israeli expert told The Times of Israel the reality was closer to 75,000.

Centrist lawmakers have blasted the idea as a stage in the process of creeping annexation and a lethal blow to the two-state solution. On the left, the proposed bill was denounced as another brick in the infrastructure of Israel’s “apartheid” in the West Bank.

The original plan, however, did not come from a right-wing lawmaker. Its author is the former military advocate general Maj. Gen. (res) Danny Efroni, who slaughtered sacred cows by refusing to call the IDF “the most moral army in the world,” and pursued an investigation that could have incriminated former IDF chief of staff Gabi Ashkenazi as part of the Harpaz document affair.

He was described in the left-leaning Israeli daily Haaretz as someone who sees his job as “to find out the truth and investigate suspicions of offenses, regardless of external pressures.”

On Sunday, Efroni gave his first-ever briefing to journalists after retiring six months ago as the top lawyer in the IDF, a position he assumed in 2011.

A ‘professional, not political’ plan
Efroni said he was not thinking of Shaked nor any political party when he sent a letter to the Israeli attorney general in 2014, recommending that when legislators enact laws in Israel, they should think in advance about Israelis living in the West Bank.

“When I wrote my appeal, I did it from a professional point of view, not political,” he said.

His belief is that towns across the Green Line should have the same legal rights as towns inside Israel.

One example he gave was that Israeli municipalities are mandated to provide public libraries.

Towns across the Green Line should have the same legal rights as regular Israeli towns
“Don’t towns just a few hundred meters away also have a right to libraries?” he asked.

The former MAG said such gaps exist in many spheres of life in the West Bank, including health, education and environment, which he said, all need “redoing.”

Currently, the only way to restructure the legal organization of the West Bank is by using the power of the overburdened military authority to legislate in the area.

The point of his initiative, said Efroni, was to make the lawmaking process for the West Bank “more effective.”

Part of the original proposal was that a team would be tasked to fill in the already existing legal gaps. Subsequently, every law to be applied within Israel, if it would have ramifications for the West Bank, would be studied together with military lawyers and then adapted to suit the needs of Israelis living in settlements.

Such a proposal, said Efroni, was originally recommended by Meir Shamgar, who designed the legal infrastructure in the West Bank in 1967 after Israel took over the territory, and who later became president of the Supreme Court from 1983 until 1995.

What occupation?

Despite the fact that most Israeli citizens believe there is no occupation in the West Bank, as recently shown in a poll, and that Israel considers the territory disputed rather than occupied, international law considers the situation one of “belligerent occupation,” Efroni noted.

The anchor of Israeli legal rule in the West Bank, according to Efroni, is contained within Article 43 of the 1907 Hague Convention, which states:

“The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.”

What is problematic is the call to “respect” laws already in force in the country, especially, as Efroni says, it is a “unique situation” for a territory to be under control for almost 50 years.

There are five existing legislative layers in the West Bank: Ottoman law (1517-1917), which regulates property and lands; British law (1917-1948), which regulates defense; Jordanian law (1948-1967), which regulates planning, construction and parts of the penal code; IDF security legislation (1967-present) and the Israel-PA interim agreement (1995-present), under which 95% of Palestinians live, according to Efroni.

“The challenge,” says Efroni, “is maintaining the status quo while guarding the interests of civilians in the area.”

According to the former MAG, in order to allow for necessary legislation by the military government to safeguard Israelis and Palestinians, Israel’s High Court of Justice “liberally” interprets the directive in Article 43 to ensure “order and safety.”

He emphasizes that “there is a need to fit the law to the realities” of the West Bank.

‘There is a need to fit the law to the realities’
Additionally, harking back to the directive to secure “order and safety,” Efroni argues that “if we didn’t adapt law to everyday realities, we would have broken international law by not taking care of the existing population.”

Efroni was adamant that his plan does not imply annexation of the Israeli enclaves in the West Bank. He was also adamant that the initiative would not have any negative ramifications for the Palestinians.

He argued Palestinians only stood to benefit from such measures, citing for example, the many tens of thousands of Palestinians who work in settlements who would come under the protection of Israeli labor laws.

He said he did not discuss the plan with any Palestinian official.

“I did not need to,” he said.

‘This is, in effect, annexation’
Prof. Amichai Cohen, a research fellow at the Israel Democracy Institute and the dean of the Faculty of Law at Ono Academic College, told The Times of Israel in a phone conversation that he did not have a strict legal argument to oppose Efroni’s initiative but found it problematic nonetheless.

“There is nothing wrong with the plan if you see it out of context,” said Cohen. He argued that the context, however, is quite clear, and that it is the agenda of the justice minister to eventually annex Area C.

Rather than formally annexing the territories, Cohen, whose article over this controversy will appear in the next issue of the Palestine-Israel Journal, says Israel is carrying out a process of “assimilation,” in which any difference between life in Israel proper and the settlements will be obliterated.

“This is, in effect, annexation,” he said.

Assimilation, the international law scholar claimed, is part of the process of making the status quo in the West Bank a permanent state of affairs. This is problematic as the occupation is meant to be a temporary solution until a political resolution can be found, he said.

Additionally, said Cohen, there is the problem that the Palestinian population, especially in Area C, will not enjoy the same rights as their Israeli neighbors.

Cohen said while he acknowledged there was a need to close legislative gaps in the West Bank, the political stalemate between Israelis and Palestinians makes such measures legally dubious.

‘Lawyers cannot give you any correct answers here because the matter is politically problematic’
“Lawyers cannot give you any correct answers here because the matter is politically problematic,” he said.

Israel was supposed to have reached a final status agreement years ago under the terms of the Oslo Accords, which gave temporary legitimacy to the settlements.

But as long as Israeli politicians are saying they don’t envision a political solution in the next generation, Cohen argued, there is a lack of legitimacy for the expansion of legislation within the West Bank, even to safeguard civil rights.

Tamar Pileggi contributed to this report